Osborne v. Eyster
| Decision Date | 02 April 1917 |
| Citation | 192 S.W. 143,195 Mo.App. 520 |
| Parties | T. B. OSBORNE, Respondent, v. W. C. EYSTER, et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number One.--Hon Joseph D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
Owen & Davis for appellants.
Walden & Andrews for respondent.
Plaintiff recovered a judgment against the defendants for the sum of $ 788.58, which was the full amount sued for with interest.
The petition avers that plaintiff operated a custom mill and that he entered into an agreement with defendants to clean certain ore-bearing dirt and rock belonging to the defendants who owned and were operating a mine. The price to be paid for milling was $ 1.10 per ton of dirt milled--forty cents for hauling and seventy cents for cleaning. The amount claimed in the petition to have been milled was 712 tons and 400 pounds for which milling it is alleged defendants refused to pay.
Defendants answered by a general denial, and, by way of counterclaim, set up that plaintiff in cleaning said ore failed to extract the same properly and permitted large quantities, to-wit, fifteen tons of actual ore of the value of $ 1425, to be wasted by allowing it to go into the tailing pile, sludge pond, and waste places, and asked judgment for $ 1425.
The verdict of the jury was for plaintiff on his claim against the defendants, and also in plaintiff's favor on defendants' counterclaim.
Defendants have appealed, assigning error in the exclusion of certain evidence, and in the giving and refusal of instructions.
The objections urged to instructions are trivial and appellants cite no authority in support of their attack. We are convinced there is no reversible error in the record so far as the instructions are concerned.
The exclusion of evidence offered by appellants is relied on to secure a reversal in this case, and in order to see the full force of this contention it is deemed proper to summarize the evidence produced by both parties at the trial.
The controverted point of fact is well shown by quoting defendants' instruction No. 4 which was given by the court: "The court instructs the jury that if they believe from the evidence in the case that the defendants employed the plaintiff, and that the plaintiff undertook for hire, to mill and clear for market for the defendants the ore-bearing dirt described in the evidence, and that the plaintiff in milling and cleaning and preparing for market the ore in said dirt unnecessarily suffered and permitted quantities thereof to be wasted and to go into the tailing pile, sludge pond and other waste places, and that the same was thereby by reason thereof lost to the defendants, then the jury will find the issues for the defendants on their counterclaim, and will assess their damages at such sum as will reasonably compensate them for the loss, if any, of such mineral."
The jury found the facts made an issue in this instruction against the defendants, and there is no doubt that there was substantial evidence introduced on the part of both plaintiff and defendants to have upheld a verdict for either under this instruction.
Plaintiff's evidence shows that he agreed to mill the defendants' dirt for the price named in the petition, and that his mill was as good or better than the average custom mill for the recovery of ore. That the 712 tons and 400 pounds charged for was not actually weighed, but that this weight was arrived at by agreement by weighing one load of every seven or eight and taking that as an average on which to base the weight of all. That the dirt furnished by defendants was thin ore-bearing dirt and that plaintiff called defendants' attention to this fact and advised them to stop having it milled on that account. That it is impossible to catch all the mineral in milling it, and that tailing piles are often worked over as many as three times. That the recovery made by the plaintiff on this dirt was as good as could be made. That Cook, one of the defendants, was at the mill a greater part of the time this dirt was being milled and that he made no complaint. That finally, the recovery running so low, the defendants asked if they could send a jig man over to the mill to represent them, which was agreed to. That one Wyckoff, a jig man, came to the mill and stayed there several hours. That Cook told plaintiff afterward that Wyckoff told him that it was all right. Plaintiff's evidence was to the effect that the mill was run as it should have been. That on one occasion, which will often happen, spouts or pipes did become filled and some of the ore did run over. His evidence further shows that dirt of this character varies in the amount of recovery, often from day to day.
Defendants' evidence tended to show that they complained of the low recovery they were getting and had a jig man, Wyckoff, go to the mill who discovered ore wasting and being lost at several places. That they took some of the waste in the sludge pond and that an assayer's report on the same showed 1.65 per cent of ore. That some of the rocks after having been partly broken up, which were average rocks, were taken to an assayer and showed that the ore ran in the neighborhood of fourteen per cent. A number of defendants' witnesses swore they could tell about what dirt such as defendants were furnishing would bear in ore and that this dirt which they saw and were familiar with...
To continue reading
Request your trial